State Supreme Court’s DUI decision presents problem for prosecutors

Lila Fujimoto

Staff Writer

lfujimoto@mauinews.com

A state Supreme Court opinion that someone arrested in a DUI case has a right to speak with an attorney before being tested will affect “the way police conduct their investigations after they arrest a person,” Maui County Prosecuting Attorney John D. Kim said.

Deputy Public Defender Wendy Hudson said it hasn’t been determined how that will work.

“We’re just waiting to see how this plays out,” Hudson said last week. “We were throwing around the idea of who’s going to be on call each night for these sort of situations.

“But in reality, unless someone has an attorney retained, I don’t know how the police are going to offer up an attorney for consultation. The logistics of it remain to be seen.”

The unanimous opinion for publication was filed April 21 in the case of State v John G. Scalera. He was stopped by Honolulu Police Department officers at about 11 p.m. June 28, 2013, after he was seen weaving over solid and broken white lines on Kailua Road.

Based on the results of field sobriety tests, Scalera was arrested and transported to the police station. There, he was presented with an HPD implied consent form for DUI arrests that said that anyone operating a vehicle on a public road “shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content.”

The form also said a defendant could agree to take breath, blood or urine tests or refuse such testing. Scalera refused to initial and sign the form, according to police.

After he was charged with DUI, Scalera sought to suppress evidence in his case, saying that because he was denied a reasonable opportunity to consult with an attorney, “he did not make a knowing and intelligent decision with regard to his informed consent options.”

The prosecution argued that a defendant doesn’t have the right to an attorney at that point, saying the reading of the implied consent form and administering breath or blood tests were “in the nature of a booking procedure.”

Scalera’s motion to suppress was denied. At a trial, he was convicted of driving under the influence of an intoxicant.

He appealed the denial of his motion to the Intermediate Court of Appeals, which affirmed the District Court’s decision.

But after reviewing the case, the Supreme Court said Scalera’s right to access an attorney was violated.

The court opinion said the right to an attorney didn’t depend on whether a police interrogation had occurred. “Rather, an arrestee may not be preemptively refused the opportunity to see, send a message, or otherwise communicate with counsel,” the opinion said.

The court said the Honolulu Police Department’s implied consent form “included a misleading advisement on Scalera’s right to access an attorney.”

But because Scalera didn’t show that the violation affected his decision to refuse testing, the Supreme Court said the District Court and appeals court weren’t wrong in their decisions.

The Maui Police Department warning form for impaired driving arrests is different from the form that HPD used in the Scalera case, Kim said.

He said police had been operating under the implied consent law, but the Supreme Court opinion would change the procedure. If someone asks to speak with an attorney or family member before testing, the police would have to make a reasonable effort to comply with that, Kim said.

Under current law, a breath or blood alcohol reading is only good if it’s done within three hours of an arrest, Hudson said.

She called the Supreme Court opinion “a good ruling because those forms and information that they’re going over with people after they’re arrested for OUI are so voluminous.”

“I think it’s difficult for most people to understand,” she said. “Being able to consult with an attorney before you decide whether to give blood, breath or urine is a great idea. But the actual logistics of it will be interesting to see.

“It’s interesting because we’re not sure how it would affect us, if at all.”